Often I am asked about the circumstances under which a divorced parent can modify the parenting time arrangement that they have with their ex-spouse. Modification can be needed for a variety of reasons – people change jobs, children get older and get involved in more extra-curricular activities, people have either more time or less time to parent. If the parties agree, modification is very easy. The parties simply sign and submit a proposed Order to the court.
But as we all know, the reason divorce lawyers exist is that people often cannot agree.
So, generally speaking, in order to modify parenting time the person seeking the modification needs to show that the modification would serve the child’s best interests. Note that I am talking about modification of parenting time, not modification of physical custody or legal custody. In order to modify physical custody or legal custody, the person seeking the modification usually has to show that the child is endangered by the current arrangement. Not so with parenting time. All that is necessary is a showing that it would be better for the child if parenting time were modified.
Unless there is an emergency, or unless one parent consistently and willfully interferes with parenting time, a person cannot seek modification of parenting time until one (1) year has elapsed since entry of the divorce Judgment and Decree. The statute pertaining to modification of parenting time is Minn. Stat. 518.18 (read it here: https://www.revisor.mn.gov/statutes/?id=518.18). However, if there has been a previous, post-decree motion to modify parenting time, then one has to wait for two (2) years to bring a motion to modify (except in the case of an emergency or persistent, willful denial of parenting time).
So, how do you make the case? You have to clearly express reasons, that will appear credible to a judge or referee, why the child will be better off with the modified schedule. You have to put these reasons in writing, in a document called an “Affidavit.”
Can you do this yourself? Yes. Can you do a good job? Maybe, but unless you are a divorce lawyer, probably not. Think of it this way – anyone can sit down at a piano and play “Chopsticks.” Very few people can sit down at a piano and play a Beethoven piano sonata. You need to tell a story. You need to make the children and their problem with the current parenting time arrangement real to the court. You need to sound reasonable, credible, and “normal.” If you paint your ex-spouse as the Joseph Stalin, the court is probably not going to believe you. Arguments ad hominem usually do not work. But, if you say something like: here are the issues, here is how these issues impact our children, and here is a solution that improves the situation of our children, the court will listen.
If you have questions about this, feel free to call me at (952) 270-7700.
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